Motion could cripple case against Mirkarimi if granted

|
(162)
Sheriff Ross Mirkarimi's attorney is seeking to prevent jurors from hearing key evidence in the case.
Evie Pit

(UPDATE 2/27: The judge today denied the defense motion to suppress this video. More details here.) The domestic violence case against Sheriff Ross Mirkarimi could be dealt a crippling blow if the judge approves yesterday's defense motion to bar videotaped testimony that his wife, Eliana Lopez, gave to their neighbor, Ivory Madison. But even if Mirkarimi beats the criminal rap, his political future could still depend on finally offering a detailed explanation of exactly what happened during that New Year's Eve incident.

Yesterday's motions were the subject of a cover story in today's San Francisco Examiner, but they were strangely buried on page C2 in the San Francisco Chronicle, which also chose not to provide details of the motion, which makes a fairly compelling case for barring the videotape that is the only evidence that Lopez may have had a bruise on her arm, allegedly inflicted by Mirkarimi.

The motion argues that the videotape is inadmissible hearsay evidence that doesn't meet the legal standard of an immediate reaction to a crime. Not only was it recorded the next day, but both Lopez and Madison say on the tape that it was intended to be used only if Lopez left Mirkarimi and sought sole custody of their two-year-old son, Theo.

“The videotape itself was the product of a reflective and deliberate decision to create evidence for purposes of a custody proceeding,” Mirkarimi attorney Lidia Stiglich argued in her motion, citing caselaw that makes such considered actions inadmissible. As the Examiner noted, the motion suggested Lopez might have ulterior motives in such an instance, making it possible that she misrepresented to Madison what had happened. Lopez denies that Mirkarimi abused her and is not cooperating with the prosecution.

Madison is quoted in the motion as saying the video was being made in case there was ever a child custody case and that “I really don't know” what happened that night, but she believed it wasn't an isolated incident, allegedly telling police, “she definitely didn't describe it as 'he grabbed my arm one time and left this mark.'”

Stiglich told the Guardian that barring the videotape from admission would be huge: “It's a significant piece of evidence.” Some legal observers have even said the entire case against Mirkarimi could crumble if that evidence is barred, and that the ruling on its admissibility could really go either way depending on which judge gets assigned to the case tomorrow.

"We are not suprised nor concerned with the motion filed by Mr. Mirkarimi's attorney and we will continue to handle legal issues in the courtroom and not in the media," District Attorney's Office spokesperson Omid Talai told us. He wouldn't characterize how important that evidence is to the case, but he did say, "Every case is filed based on the totality of evidence."

Yet Stiglich said much of the case rests of that videotaped evidence, which she believes presents a distorted view of what happened. “These statements are essential to their case, and there are issues with that type of testimony,” Stiglich told us.

Yet if Mirkarimi beats the criminal rap by suppressing that evidence, it's unlikely to help him in the court of public opinion. Neither Mirkarimi nor Lopez have provided a full explanation or alternative narrative of what happened that night, how the alleged injury occurred, or other crucial details, and Stiglich said she doesn't think now is the time for that kind of tell-all.

“I don't think anyone should be making factual statements outside the courtroom at this point,” Stigich told us, confirming that she has advised against Mirkarimi making those kind of public statements, although she said he has been anxious to do so.

Motions in the case could be heard as soon as tomorrow, but Stiglich said she doesn't expect opening statements in the case to take place under the week after next. She estimates witness testimony in the case will take about a week.

Then, after it's all over and the jury renders a verdict, we'll all see how much Mirkarimi's team discloses about what actually happened that night and with earlier instances where Mirkarimi allegedly got physical with Lopez and a previous girlfriend, Christina Flores, who prosecutors also hope to put on the witness stand.

And if there are still questions to be answered, then we can all push Mirkarimi for a fuller accounting, render our own judgments, and determine where we think the truth lies and what that says about the public officials involved in this case.

Comments

I think the jist is this. The couple is grappling about divorce, and both are afraid of losing little Theo:

“I’m going to use this just in case he wants to take Theo away from me,” Lopez says on the video. “Because he did, he said that, that he’s very powerful, and he can, he can do it.”

Madison allegedly told police, “I really thought that we would never have to use this video, uh, unless, [Mirkarimi] got nasty in the divorce proceedings.” Mertens told police that the two women spent hours talking that day.

Posted by Guest on Feb. 23, 2012 @ 3:41 pm

Ross essentially stands by his original statement: "It's a private matter. A family matter."

He doesn't, ever, want to disclose "what happened that night."

Posted by Guest on Feb. 23, 2012 @ 3:42 pm

His scorched earth legal tactics may in the end get him out of this jam, but he will never be reelected as sheriff or anything else in this city.

He has burned too many bridges. He's alienated people who were his long-time supporters and his friends. He's shown himself to be someone willing to sink lower than the lowest level of prehistoric frog shit in a a New Jersey scum swamp in order to keep himself in office - willing to besmirch the reputation of anyone, to bend the law indeed to do ANYTHING.

And people will never forget it.

Posted by Guest on Feb. 23, 2012 @ 3:46 pm

It would be really good if people would view this as a legal case and not bring in their politics into it.

Were you ever his "long time supporter"?

Posted by Guest on Feb. 24, 2012 @ 8:51 am

If his lawyer hadn't made this motion, she would have been guilty of malpractice. It's a no-brainer.

Posted by Guest on Feb. 24, 2012 @ 9:34 am
Posted by Guest on Feb. 25, 2012 @ 5:19 pm

wife-beating bully is guilty? If the video proves that, not only should it be admitted, but it should be made public.

Posted by Greg on Feb. 23, 2012 @ 4:00 pm

poor Greg..he thinks there is a video showing the sheriff beating his wife..There isn't ..won't greg be surprised? Greg, think of it this way. Just suppose someone really doesn't like you and they tell someone else that they saw you buying drugs..a recording was made of your enemy telling someone else that youbought drugs..That would be hearsay..for starters..but you would want that recording used as strong evidence against you..Would that be either right or fair? I guess in Greg's world..it would. This trial is going to be sooooo interesting.

Posted by Guestcoppersmom on Feb. 24, 2012 @ 8:59 am

is evidence that Ross is guilty or it's evidence that his wife is guilty of other crimes. So, yeah, this will be interesting but probably not in a way you'll enjoy.

Posted by Guest on Feb. 25, 2012 @ 5:21 pm

"The videotape itself was the product of a reflective and deliberate decision to create evidence for purposes of a custody proceeding,” Mirkarimi attorney Lidia Stiglich argued in her motion."

So Ross is essentially conceding that he is in a divorce battle that includes some ruff stuff on his part?

A private matter, a personal matter?

The longer this ugly mess drags on, the less "private" it will be.

Posted by Guest on Feb. 23, 2012 @ 4:08 pm

his cute little hispanic lady was a "willing and consensual" partner in his kinky games.

How low will this slimeball go to save his faltering political career?

Posted by Greg on Feb. 23, 2012 @ 4:11 pm
Posted by Guest on Feb. 23, 2012 @ 5:25 pm

have registration. Therefore all names are bogus, transferable and meaningless.

But I'll assume from that tangential comment that you cannot refute the substance of my post?

Posted by Greg on Feb. 23, 2012 @ 5:33 pm

...to your post.

Posted by steven on Feb. 24, 2012 @ 10:45 am

He could save his political career if he pleads no contest and openly admits he has made some serial mistakes in his marriage.

The progressive community will have difficulty forgiving him unless he comes forth with a full apology and rendering of his behavior.

Posted by Guest on Feb. 23, 2012 @ 4:25 pm

kills political careers. Why oh why can't Ross be decent, come clean and be honest? He's a law enforcement officer who is playing fast and loose with the truth and relying on the technical suppression of evidence to get his slimy ass off multiple violence raps.

It smells nasty.

Posted by Greg on Feb. 23, 2012 @ 4:37 pm

Spoken like someone who has never followed a criminal case, Not-Greg. As much as I'd like to see Mirkarimi recount what happened that night in detail, there are good legal reasons not to do so. If he's acquitted or the charges are dropped because this evidence is barred, then I think we can and should expect him to explain more of what happened, and I'll be the first one to ask him the questions. But until this case is resolved, it's just silly to accuse him of a cover-up or failure to "come clean" when his freedom, career, and family are all at stake. With the exception of making his ill-advised "private matter, family matter" comment one time -- which has been endlessly looped and even made the subject of a billboard -- I doubt that any of you would have handled this any differently if you found yourself in this position.

Posted by steven on Feb. 23, 2012 @ 5:00 pm

If the video shows that Mirk injured his wife then that should come out. and if he is not forced to release it, he obviously will not.

So while it's obviously in your political interest to get Mirk off on a technicality, you do not serve the objective of truth and transparency in advocating for the exact opposite of the "sunshine" that you so passionately argue for elsewhere.

Posted by Greg on Feb. 23, 2012 @ 5:30 pm

@Not-Greg,

Steven is right. You are too quick to judge. Admit one thing~ you weren't present when the incident occurred, so you have no idea what happened. You don't know whether Eliana L was "building a case", or was being "overly dramatic", as she confessed to a neighbor (according the affidavit). You don't even know for certain that the bruise was a result of her husband grabbing her arm. Nor do you have a good sense of what's motivated her to make that video. Yet, you are only too willing to jump to conclusions. Why?

Why is it so hard for you to wait for the trial for all the evidence to come out? Why do you assume you know everything when you weren't there to witness it? Why is it so hard to keep an open mind? Finally, what's in it for you and all the anonymous trolls who show up on the site just to bash progressives? I think that's the question we should really be asking ourselves. And perhaps whether we should give credence to someone who lacks the integrity to post under his/her own name.

Posted by Lisa Pelletier on Feb. 23, 2012 @ 5:51 pm

*what motivated her (not "what's")

Posted by Lisa on Feb. 23, 2012 @ 6:12 pm

Isn't the only issue whether he is guilty?

If this were Newt or Bush, would you be crowing just as aggressively? If not, why not?

Posted by Greg on Feb. 23, 2012 @ 6:19 pm

If that video proves that Ross beat his wife, would you support him getting off the conviction via a motion to suppress it on a technicality?

Or do you soooo want him to get off that you don't actually care whether he is guilty or not?

Simple yes-no question.

Posted by Greg on Feb. 23, 2012 @ 6:18 pm

It is your INTERPRETATION that the video "proves" that an act of domestic violence took place. Have you seen it? If not, then how can you claim that it proves anything whatsoever? Could there be another explanation for what's (purported to be) on that tape? Do you honestly know what motivated Eliana L to make that video? Have you ever thought to question your own assumptions?

It is interesting because when I first read the affidavit, I thought, this doesn't sound like a case of domestic to me. It sounds more like a custody case. I realize that this is an interpretation, too, and it could be wrong. But it's interesting that Ms. Stiglitz is now arguing that's what the video was really about...because that's what stood out for me when I read the affidavit. Ross M and Eliana L appeared to be motivated by the same fear over the thought of losing Theo. But does that mean that I know what really happened? No, I don't claim that for a second. And I don't think you know either.

Finally, I never said that it was important that Ross M is a progressive. I was referring to the trolls who show up on this site for no other reason than to bash progressives. And asking whether they deserve to be taken seriously, given their sole purpose here is to cause us mischief (as you're doing by coopting Greg's name). I've said this before and I'll say it again~ If Ross M is guilty, I will join you in demanding that he step down. But not before the jury delivers its verdict. Like it or not, in our American system of justice, a man is innocent until proven guilty.

Posted by Lisa on Feb. 23, 2012 @ 7:01 pm

My apologies to Ms. Stiglich (Ross M's attorney) for getting her name wrong.

Posted by Lisa on Feb. 23, 2012 @ 7:09 pm

You want Ross to be exonerated because you happen to agree with his politics.

You want the video to be suppressed even if it proves Ross's guilt.

That's what you should be apologising for.

Posted by Guest on Feb. 23, 2012 @ 7:18 pm

a bruise and that, at the time, Ross's wife said that Ross inflicted it. The neighbor has testified to that and she had no reason to lie.

So if the video exonerates Ross then fine, let's see it.

But unless you're going to deny that that bruise was there, then an explanation has to be furnished. How did it get there? And why would his wife lie about that?

So either Ross hurt his wife or his wife is lying. Which?

So one of them should be prosecuted either way.

Oh, and it matters that Ross is a "progressive" because you hypocritically would NEVER have defended George W. Bush if he had been in the same situation.

Posted by Guest on Feb. 23, 2012 @ 7:11 pm

clue: the neighbor hasn't testified to anything.

Posted by Guestcoppersmom on Feb. 24, 2012 @ 9:10 am

we all know what she said.

Posted by Guest on Feb. 24, 2012 @ 5:27 pm

Whether the video is admissible as evidence of criminal conduct is a technical legal question, but I already wrote that even if the jury isn't allowed to see it, we all have an interest in getting a better understanding of what happened that night, better than any of us have right now. Neither me nor Lisa nor anyone here has sought to excuse an act of domestic violence if that's what happened. In fact, we've said precisely the opposite, but you trolls are too busy wagging accusatory fingers to listen. Read, think, try to understand, then you'll sound smarter when you comment.

Posted by steven on Feb. 24, 2012 @ 10:55 am

That way there will be no doubt.

Posted by Guest on Feb. 24, 2012 @ 5:28 pm

Yes, the coverup will be what sinks him unless he comes forth with an honest explanation of his marriage difficulties and his pattern of violent behavior against women.

Nixon's Watergate scandal and Whitewater dragged on forever because the perps were not forthcoming with honest renderings of their wrongdoings.

Posted by Guest on Feb. 23, 2012 @ 4:49 pm

I don't think it could go either way at all. The video is clearly inadmissible, and if the superior court lets it in the appeals court will likely reverse. Anyone who says otherwise is covering for the moderates' political show trial.

With Dianne Feinstein's daughter choosing the judge, we all need to get real here.

Posted by Guest on Feb. 23, 2012 @ 5:04 pm
Posted by Guest on Feb. 23, 2012 @ 6:28 pm

The reason evidence is inadmissible is because it doesn't prove anything. Duh.

They way political opponents are making this non-case into a media war reflects badly on them. They are going to lose and look just as stupid as the polling data suggests they really are.

Posted by Guest on Feb. 24, 2012 @ 9:13 am

The best you can say about this trial is activists want a show trial to spotlight the issue of domestic violence, by putting up billboards for one thing.

But anyone who honestly puts forward that this trial is actually about discovering the truth based on evidence just looks foolish, most of all to the people prosecuting the case and the people conducting their media war in the press.

Posted by Guest on Feb. 23, 2012 @ 5:22 pm

it was intended for something else?

Posted by matlock on Feb. 23, 2012 @ 5:23 pm

It's not evidence because it could well have been fabricated to gain custody of her son.

This was intended as leverage in a divorce, there were strong and compelling reasons for that evidence to be fabricated.

If the bruise was not inflicted by Mirkarimi there is a strong reason for Lopez to plead the fifth when called to testify.

This looks like the people that work with and around Mirkarimi know of his volatile disposition and jumped to conclusions and are now hoping that they are correct.

Posted by Guest on Feb. 23, 2012 @ 6:29 pm

self-inflicted for the purpose of gaining an unfair advantage in the forthcoming inevitable and messy divorce?

If so, should Ross's wife be charged with attempted fraud?

Posted by Guest on Feb. 23, 2012 @ 6:40 pm

What the apologists are saying...

There was an altercation and the wife wanted to record it in case there is a
custody hearing, but since this isn't a custody hearing it there was no altercation.

When I read these lawyering up excuses I keep thinking I'm missing something, in reality what I am missing is any sort of intellectual honesty.

It's as if the defense for murder is that the cops were watching the killer because they thought he was a bank robber.

Posted by matlock on Feb. 23, 2012 @ 8:08 pm

Yes, Matlock Troll, these are complex legal issues that you clearly don't understand, so don't hurt yourself thinking too hard about them, better just to spout off from a place of ignorance, it's much easier.

Posted by steven on Feb. 24, 2012 @ 11:00 am

Mirkarimi is a podunk in a podunk town, the dreamers around here have a lot invested in Mirkarimi and the movement. When one of the fellow true believers pulls a boner they all line up to fall on their swords like clock work.

If Mirkarimi gets this evidence booted he may scrape by, and it's all about getting over with the Guardianbots. But this will be just another example of the fringe left being no better than the fringe right. Just hope the voters forget this little episode soon, because the the progressives and their self righteousness have had little success lately.

The paper that claims to be for right and wrong, is rooting to have evidence dismissed from a spousal abuse case, for the sole reason the person involved is a fellow true believer. Can't make this stuff up.

Sayre's law states, in a formulation quoted by Charles Philip Issawi: "In any dispute the intensity of feeling is inversely proportional to the value of the issues at stake." By way of corollary, it adds: "That is why academic politics are so bitter." Sayre's law is named after Wallace Stanley Sayre (1905-1972), U.S. political scientist and professor at Columbia University.

Posted by matlock on Feb. 24, 2012 @ 1:30 pm

Show me where I was "rooting to have evidence dismissed." Go ahead, Matlock, it's written right here in this post, for anyone to read. Reporting on a motion that was filed and its possible implications isn't taking a position on it, it's journalism, or the conveying of factual information, of which you apparently have little use, particularly if it interferes with your ridiculous, repetitive old position that progressives are exactly the same as the extreme right. I'll respond if you can prove your point, otherwise I'm going to go back to ignoring you, which is what I and others should have done in the first place.

Posted by steven on Feb. 24, 2012 @ 2:59 pm

Your various post's insisting that people don't understand what hearsay evidence is, or your "these are complex legal issues that you clearly don't understand". Complex legal issue meaning that you don't mind scummy lawyers trying to bar evidence from a trial? I didn't make you post that bit of crazy, did I?

You understand that defending the defenses schemes is, ahem, cough, ahem, rooting?

If you are going to reference Mirkarimi's tactics by saying others are just to dumb to get it, well, then you are rooting.

I'm just a simpleton comparing your barely sophisticated Oliver North/Reagan, Rush Limbaugh like defense.

Getting over is the most important thing. You call it "conveying factual information" mixed with "these are complex legal issues that you clearly don't understand" which in the real world is Mirkarimi's lawyer spouting and you defending.

Dude I don't care like others that you are a biased hack. But at least man up and admit it or keep your mouth shut and live with your life choices.

If a lawyer for some right winger spouted along these lines and a right wing "journalist" said that the nay sayers were too stupid to get the nuances of the lawyers scheme, then the journalist would be rightly called a "rooter".

Steve I'm holding you to the same standard you would hold a Chronicle reporter. Standard is the wrong world of course, but what word conveys the Steve's subjectivity around reality?

Posted by matlock on Feb. 25, 2012 @ 2:09 am

Matlock, Matlock, you're plagiarizing Wikipedia to make yourself sound halfway intelligent. In fact, you copied your last paragraph word for word without attribution. That's bad enough, but you're not even smart enough to know what it means. Just the usual non sequiturs.

Posted by Guest on Feb. 24, 2012 @ 5:02 pm

You cannot charge someone with "attempted fraud" for making a video that they did not release to anyone. The neighbor releasing it does not make it fraud, even if the wife lied on it. She never released it. It is not a crime (yet) to lie to your neighbors about your marriage.

Posted by Guest on Feb. 24, 2012 @ 7:44 am

say in a custody case, the quasi subject at hand, then it would be fraud.

The subject at hand is why she would give herself a bruise at this time to enable a custody case in the future?

Makes total sense right?

Posted by matlock on Feb. 24, 2012 @ 1:51 pm

She says right on the tape that she was making the video in case her husband tried to take her son away from her. It doesn't get much clearer than that. As for the bruise, there's too much conjecture going on with too little evidence to back it up. The fact is, we simply don't know what or who caused the bruise, or for what purpose.

Posted by Guest on Feb. 24, 2012 @ 5:18 pm

why are they refusing tot alk about it?

Posted by Guest on Feb. 24, 2012 @ 5:29 pm

get off by suppressing the one clear and unambiguous piece of evidence that he beat his wife.

Hypocrisy, thy name is Steven.

Posted by Guest on Feb. 23, 2012 @ 6:30 pm

Please point out the specific paragraph or sentence where Steven calls for suppressing the evidence . And if you can't come up with it (which you can't), then please stop flinging these spurious accusations at him.

Posted by Guest on Feb. 24, 2012 @ 5:30 pm